P L D 2002 Lahore 210 (PLP)

ALI NAWAZ CHOWHAN, J.‑‑‑After hearing the case on 12‑12‑2001 and through our short order, we modified the sentence of the petitioner from death to life imprisonment while also sentencing him to a fine of Rs.25,000 which if recovered was to be paid as compensation to the legal heirs of the deceased under section 544‑A, Cr.P.C. We are now recording a full judgment in this connection.

2. Ex‑Sepoy Liaqat Ali has through this writ petition challenged his conviction and sentence awarded to him by the Field General Court Martial on 27‑1‑2000 and later confirmed by the Chief of Army Staff on 5‑4‑2000. His appeal before the Court of Appeals constituted under section 133‑B of the Pakistan Army Act was also rejected on 18‑10‑2000.

3. The main grounds urged in this Constitutional petition were that the sentence awarded to the petitioner suffered from irrationality and perversity and it called for judicial review. Various grounds have been given in the writ petition in support for the judicial review.

4. The accused/petitioner was held guilty for committing the murder of his company fellow sepoy Aziz‑ur‑Rehman (3735307) with the help of an axe between 29 /22 June, 1999.

5. According to Lance Naik Manzoor Ahmad (2556581), he was line guard and performing duty there between 02‑00 hours to 05‑00 hours. That at about 03‑25 hours, he heard a sound which made him alert and he proceeded that side when no one replied to his call. He saw the accused/petitioner holding an axe in his hand and hitting Sepoy Aziz‑ur Rehman (3735307) of the same company with his axe. He immediately got hold of the accused/petitioner who offered no resistance. He took the axe which had fallen down. He discovered a deep cut wound on the neck of the deceased. And when he questioned the petitioner as to why he had done such an act, the petitioner kept mum. He is perhaps the only eye‑witness of the occurrence.

6. The second witness Naib‑Sabedar Muhammad Sharif (PJO 176988) who after the occurrence woke up, rushed to the spot and saw the accused/petitioner in custody. He also saw that the petitioner/accused was having blood stains on his clothes. He ordered for his immediate arrest and for information to others in the unit. He saw the dead body with the injury can the neck and the weapon of offence lying.

7. Hav. Abdul Latif (2572837) also woke up because of the noise and icarnt of the occurrence.

8. Subedar Shah Muhammad (PJO 175424) is the fourth witness who learnt at about 04‑00 hours about the occurrence. He rushed to the unit and found all the officers including the commanding officer present there. H also saw the dead body lying on the Charpoy of the deceased.

9. NK Walayat Khan (2569247) also woke up that night and was informed about the occurrence and he saw the accused/petitioner in his grip.

10. Hav. Zulfqar Ali (2727872) was on accident Squad Duty. He mad the sketch of the site where the occurrence had taken place.

11. Maj. Muhammad Asif (PSS‑22012) was performing duties of 2nd ii Command 50 of Baloch Regiment. At about 03‑40 hours of the nigh between 21/22 June, 1999, he heard about the occurrence. He reached 'A Company Lines and saw the deceased in a pool of blood on a Charpoy having a deep cut on his neck. He also saw the accused/petitioner locked‑up in the room of Platoon No.2. He questioned the accused/petitioner who mad some replies about his friendship with the deceased and the deceased' friendship with others.

12. Maj. Israr Ahmad (PA‑26651) had been recording the statements o the witnesses who were to be later produced in the Court.

13. Lt.‑Col. Shahid Malik (PA‑112370) who was a pathologist performed the autopsy and observed the cut wound on the right side of thi neck of the deceased and he prepared the autopsy report which was market "N" at the trial proceedings.

14. Mr. Sikandar Bukhari, a Magistrate, was the 7th witness for the prosecution. At the relevant time, he was performing the duty of Magistrate 1st Class at Okara. On 23‑6‑1999, the accused/petitioner was brought to him where he is said to have made a. judicial confession.

15. It appears from whatever record was attached with the writ petition that even at the stage of the charge the accused/petitioner pleaded guilty but this was written as "not guilty" and he was, therefore, proceeded and the statements of the witnesses were recorded.

16. In his statement before the Field General Court Martial, he made thg following statement: "I am serving in 50 Baloch since November 1997, I and Sep. Aziz ur‑Rehman (deceased) met each other for the first time in Selection and Recruitment Office, Multan where we had gone for enrolment We both were enrolled the same day in Baloch Regt. and we reported Baloch Regt. Centre together. From there we develop friendship with each other. In the centre we joined the same company and same platoon. On termination of training, we bolt joined 50 Baloch further strengthened our friendship. In the unit also, we were given the same company and platoon. However, later he was sent to Platoon No. 2 whereas I was given Platoon No.

1. Due to our fast friendship, we also used to visit each other's home in Multan. Meanwhile the deceased developed friendship with Sep, Abdul Ghafoor of the same company which made me sad. Sep. Abdul Ghafoor used to get favour for the deceased from Platoon Hav. in connection with duties etc. He also got a field Jacket from BQMH and handed it over to the deceased. Sep. Abdul Ghafoor is a very fast man. He used to enjoy good relations with company appointments. One day, I saw Sep. Abdul Ghafoor and the deceased kissing each other. On this I got annoyed and slapped the deceased on this indecent act. The deceased reported this matter to Sep. Abdul Ghafoor who exchanged hot words with me. On a number of occasions, I warned the deceased to break his friendship with Sep. Abdul Ghafoor, however, he did not act upon .my advice. Rather, he developed friendship with Nk. Nusrat of 56 Punjab who was also not of good character. This whole situation made me so dishearted that I applied for discharge. However, on the persuasion of other company mates, the deceased asked me to get back the application and also promised me to discontinue his friendship with Sep. Abdul Ghafoor and Nk. Nusrat. On this I agreed but categorically warned him that in case I see him again with those individuals, that would be the last day of his life and my own: However, despite all my warnings, the deceased did not break his friendship with the said persons, rather, I came to know that Sep. Abdul Ghafoor had started visiting the deceased's home. On 18th, June, 1999, the deceased's brothers visited him in the unit. As a goodwill gesture, I arranged dinner for them from 327 Bde. Offrs. Mess. On 20th June, 1999, I alongwith NK Nusrat accompanied the deceased to Okara City to see off his brothers. I also gave Rs.50,000 to his brothers. The same evening when we came back from the city, the deceased got into scuffle with me without any cogent reasons on the instigation of Sep. Abdul Ghafoor. He slapped me on my face and this was the time when I decided to get rid of the issue by killing the deceased. Next day i.e. on 21st June 1999, 1 borrowed an amount of Rs.100 from the deceased. At about 12 hrs. I. got a cycle from the unit cycle shop and visited Gamber without outpass. I purchased an axe for Rs. 130 and came back to the unit in the evening. At about 03‑15 hours, I duly armed with the axe went to the deceased who was sleeping in veranda. I woke him up and once again tried to convince him that he should quit the company of bad people. However, in response he punched me. On this I got out of my senses and struck the deceased on his neck with the axe. I used the axe with full force twice or thrice. I also wanted to commit suicide but I could not get the chance‑as I was overpowered by Lnk Manzoor Ahmad. During the C of I, 1 promised Lt.‑Col. Forooq that I will not commit suicide till the time I am in uniform. However, the moment I got out of the Army, I will definitely' commit suicide. At the end I would like to say that what all I have done was only due to the deceased's friendship with Sep. Abdul Ghafoor. I also want to add that in case I am not punished with death I would definitely commit suicide as I want that only my dead body should be taken towards Multan."

17. The occurrence having taken place in the unit and having been admitted by the accused/petitioner as such before the Field General Court Martial and there being nothing to suggest any enmity, ill‑will, malice on the part of the persons prosecuting him and the Field General Court Martial and he being the sole accused, it is evident that he caused the death of his colleague and, therefore, the case against him was duly established and the l A order of conviction does not appear to be suffering from any infirmity.

18. However, according to learned counsel for the petitioner, the sentence of death awarded to him was not a legal sentence as no one appreciated that there were mitigating circumstances calling for an alternate sentence provided by law and it is only to the extent of the sentence that arguments were addressed.

19. The Supreme Court of India in the case of Machhi Singh and others v. State of Punjab (AIR 1983 SC 957) has laid some guidelines for answering the question whether in a particular case imposition of death sentence was required or should the sentence be life imprisonment.

20. The relevant excerpt from the said judgment is reproduced below in extenso "The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability. Before opting for the death penalty the circumstances of the 'offender' also require to he taken into consideration alongwith the circumstances of the 'crime'. Life imprisonment is the rule and death sentence is an exception. In other words, death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances. A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have .to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances .before the option is exercised."

21. In the case of Bachan Singh v. State of Punjab (AIR 1980 SC 898), relevant observations were as follows: "There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. It cannot be over‑emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the Courts in accord with the sentencing policy writ large in section 354(3). Judges should never be blood‑thirsty. Hanging of murderers has never been too good for them. Facts and figures, albeit incomplete, furnished by the Union of India, in the instant case, show that in the past, Courts have inflicted the extreme penalty with extreme infrequency‑‑‑a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that Courts, aided by the broad illustrative guidelines indicated, will discharge the' onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in section 354(3), viz. that for persons convicted of murder, life imprisonment. is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably fore closed."

22. In the Pakistani Law, mitigating circumstances have been under the consideration of our Courts who have been granting consequential reliefs wherever necessary keeping in view human conduct and circumstances of each case. This has been invariably happening inter alia in cases of family honour, provocation, fights, and, where motive was shrouded in mystery and also where the victim was not a Massom‑ud‑Dam.

23. In this case, the petitioner is admittedly a young person, whose statement recorded by the Field General Court Martial reflects that the act which he had done was destitute of any wickedness. His conduct reflects a pure human frailty, psychological obsession on account of perversity or psychological imbalance. He made a clean breast of what he had done and E from whatever one gathers from the record, it appears that after the act he appeared satisfied and became calm. It obviously means that thereafter his normality returned. Perhaps he was of the view that the deceased had fallen in bad company and he should protect him or probably he had such an emotional attachment with the deceased that his perversity could not bear any interruption. All this has to do with the behavioural patterns of those in post‑1 adolescence and which may have developed while they live in a total male society having no one to counsel or where a psychiatrist's advice is not available. Although in his statement the accused/petitioner has accepted his guilt but it is possible that many things still remained shrouded. It is also possible that there was a provocation from the deceased which may have overwhelmed the faculties of the petitioner immediately before the occurrence on receiving a punch from the deceased.

24. Even otherwise, the very act of confession voluntarily made should ordinarily bring the case out of the ambit of severe punishment taking it to an area of a lesser punishment and this is an accepted norm in the civilized world.

25. What else than should constitute a mitigating circumstance in a case where the petitioner could not get proper legal advice and where he implicated himself blindly. It has also come on record that while he was talking to one of his officers, he stated that what he did was correct and that he was ready for committing suicide but was asked not to do so and this restrained him. In a case like this weighing as to what ought to be the punishment is really the job of legal experts as it involves subtle principles of Criminal Jurisprudence to be appreciated by people trained in the legal profession and having required perception.

26. As the Field General Court Martial had not been rendered correct legal advice as to the quantum of sentence and as the sentence was not based on rational grounds this Court can interfere for a curative action and for providing justice to a citizen and a personnel of the Pakistan Army. 27 For these reasons, we uphold our short order accordingly. N.H.Q. 32/L Sentence reduced.